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(1) AS (SOMALIA) & ANOR v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The Nationality, Immigration and Asylum Act 2002 s.85(5), which precluded an adjudicator from considering, on an appeal against a refusal of entry clearance, matters arising after the date of the decision, was compatible with the European Convention on Human Rights 1950 art.8. In any event, it could not be "read down" pursuant to the Human Rights Act 1998 s.3 to enable an adjudicator to look at all the circumstances in cases where family reunification was in issue.

23 June 2009

The appellant Somalians (S) appealed against a decision ((2008) EWCA Civ 149, (2008) Imm AR 510) that the Nationality, Immigration and Asylum Act 2002 s.85(5) could not be "read down" pursuant to the Human Rights Act 1998 s.3, and that it was not, in any event, incompatible with the European Convention on Human Rights 1950 art.8. Section 85(4) provided that an adjudicator hearing an appeal against an immigration decision could consider evidence concerning a matter that arose after the date of the decision. However, s.85(5) precluded an adjudicator from considering such evidence in an appeal against a refusal of entry clearance. S had applied unsuccessfully for entry clearance in order to join a family member in the United Kingdom. In the 32 months that elapsed between the application for entry clearance and the date when their appeal was heard, their circumstances had changed very much for the worse. The immigration judge decided that he could not take into account events post-datin...

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